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Bar Journal - Summer 2005

Dispute Resolution Options in Divorce and Custody Cases

By:

 

Until 1971, divorce was definitely a "litigation" practice like torts. From 1791 to 1971, getting a divorce required proving a fault ground. In the last 35 years, the approach to divorce in New Hampshire’s statutes, courts, and by lawyers has substantially changed.1

By 2005, divorce has increasingly become a "transactional" or office practice.2 The addition of "no-fault" grounds in 1971 was the first step in this change.3 The 1980s and 1990s saw a growing number of self-represented parties,4 the institution of child support guidelines,5 and the codification of property division and alimony law.6 More recently, the evolution to a transactional area of practice has been aided by the acceptance of alternate dispute resolution processes, and by the adoption of the family court system.7 As the Supervisory Judge of the Family Division has said, "The core of the family division is to reduce the adversarial nature of proceedings involving families and to provide community-based courts where these cases can be handled on a consistent basis."8

More changes are coming. The Task Force on Family Law report calls for a change in the "culture of divorce."9 Chief Justice John T. Broderick, Jr., told the General Court, "In my judgment we also need to fundamentally rethink how divorce is handled in our courts. Taking spouses and children in stress and forcing them into an adversarial system, with no other meaningful alternative, is neither economically sound nor socially beneficial."10

The First Decision in Divorce and in Cases Involving Minor Children

Potential clients consulting a lawyer for the first time are anxious to talk about issues such as their time with the children, who gets the house, and how the 401(k) gets divided. But there is an initial decision that must be made before any of these are resolved—the choice of decision-making method.

Families facing divorce or allocation of parental rights11 cases have several options for resolving the issues12 between them, including:

A. Direct Negotiation

B. Mediation

C. Collaborative Practice

D. Negotiation through Lawyers

E. Neutral Evaluation

F. Parenting Coordination

G. Litigation

These options occupy a continuum from, on the one end, complete autonomy of the couple in making decisions without professional input (direct negotiation) to, on the other end, the couple having no control over the decisions as they are made by a judicial officer (litigation). Approximately 80 percent of divorces settle by one or more of the non-litigation methods. Of the rest, approximately 10 percent are defaulted and 10 percent are litigated.

Chief Justice Broderick has called for a divorce system with "many off-ramps," with litigation as the last choice.13 The options listed above match his description. The Task Force on Family Law has called for lawyers to:

Serve as ‘counsel’ not just as advocates for their clients, helping to identify other alternatives to highly contentious litigation, whenever possible.... Our recommendations aim to foster an environment in which more parties are empowered to actively participate in their important decision-making rather than have a judge or master make the final determination for them.14

Summary of the Decision-Making Options

In direct negotiation, the parties use face-to-face meetings, phone, or E-mail to discuss the restructuring of the family and the specific issues required by the court to be covered in an agreement. While direct negotiation offers autonomy, it necessitates working with the spouse or other parent, without the assistance of a professional. Given the emotional stresses common to people facing divorce or separation, many couples find it impossible to work out all issues directly.

Mediation is described as "assisted negotiation."15 A trained person facilitates the negotiations between the parties in a series of face-to-face meetings. The negotiation method is generally "interest-based," rather than "positional bargaining."16 In the model generally used in New Hampshire divorce and allocation of parental rights cases, lawyers are not present, but are used as consultants or "coaches" to provide legal advice between mediation sessions and to review the draft agreement.17

Collaborative practice, also called collaborative law, uses specially trained lawyers18 representing each party. This collaborative training focuses on how "to help the parties engage in creative problem-solving aimed at reaching a negotiated agreement, that meets the legitimate needs of both parties."19 Key to this is a commitment not to litigate.20 Negotiations are conducted in four-way meetings with the lawyers facilitating. As in mediation, "interest-based" negotiation is commonly used.

Negotiation between lawyers is the traditional method of resolving divorce and parenting issues, and is still the most-frequently-used method in New Hampshire. Information and proposals are exchanged, usually by mail or electronically. Each lawyer-client team works together and makes or responds to proposals until all issues are settled.

With the increasing number of self-represented parties, negotiation with only one lawyer on the case is becoming more common. Negotiating with an unrepresented party has its special challenges, which will be discussed below.

In neutral evaluation,21 an experienced lawyer hears the arguments of both sides and tries to settle the case. Usually this involves "shuttle diplomacy,"22 with the evaluator meeting with each lawyer-client team separately. The evaluator gives his or her opinion of the results if the case were litigated, to encourage settlement.

Parenting coordination is a method of making minor child-related decisions,23 rather than answering questions such as "where does the child live?" or "shall the child go to private school?" A parenting coordinator is appointed by the court to mediate small decisions, often those related to implementing an order or agreed-on parenting plan.24 If mediation does not resolve the issue, the parenting coordinator makes the decision.25

In litigation, the couples have no control over the decisions for their families. The judge or master decides all disputed issues. Litigation as an option will not be explored in this article, but each of the other decision-making options will be discussed in greater detail.

Information Before Decisions

Whatever method of decision-making is chosen, certain information is needed before proceeding:

a. List of issues to be resolved

b. The law and legal advice as to how it would apply in each party’s situation

c. Assets and values (divorce or legal separation only)

d. Income and expenses

e. Child development basics (if there are minor children)

The court’s outline of standard paragraphs 26 is a good basic list of the issues in a divorce. If there are minor children, more detail than the standard paragraphs require is needed for the parenting schedule.27

Each of the parties should have legal advice before starting to make decisions. This is especially important if they are using direct negotiation or mediation. Legal advice is both a preparation for negotiation and protection against poor decisions. Many people facing divorce have mistaken ideas about legal basics. For example, some believe that a pension goes to the employee spouse,28 or that sole decision-making responsibility is a likely outcome.29

An hour with a lawyer can provide both legal information and legal advice before beginning direct negotiation or mediation. Some clients using one of these methods retain a lawyer to advise them between negotiation or mediation sessions. Such representation is often on an unbundled30 or limited legal services31 basis.

A list of assets and their values is essential for property division using any method. Compiling this list usually includes assembling current statements of retirement plans, investments, and bank accounts. Either the parties must agree on the values of the home, other real estate, and vehicles, or they need market analyses, appraisals, or "blue book" values to establish values. The court financial affidavit form32 is a good way to assemble the list of assets, values, and any debts against the assets.

Income and monthly expense information is needed to calculate child support, discuss alimony, and consider any request to vary from the presumption of equal division of property. Again, the court’s financial affidavit form is a good starting place as it has a detailed list of possible income sources. It also requires listing all the expenses that are factored in a Guidelines33 child support calculation.

A good way for parties to get the child development basics is to attend the Child Impact Seminar34 before any decision-making.35 This seminar is required for parties with minor children, but is often attended later in the process, after some or all decisions have been made. There are also excellent books on children and divorce.36 Another approach is for the parents to meet with a child psychologist or other child expert to discuss the needs of their child or children.37

Choosing the Decision-Making Method

Not everyone facing divorce or a custody dispute is aware of the array of decision-making options available. Having this information at the earliest possible stage, before either party is committed to a method and before either party becomes entrenched in a position,38 is best. Parties who are aware that there are choices about decision-making options are more likely to choose a method that gives them more control.

Mediation should occur early in the process.39 When mediation occurs later in the process, the parties’ positions are hardened, animosity has likely escalated, and the parties are less willing to listen to each other. This is borne out by studies showing that settlement rates at mediation are significantly higher when mediation occurs early in the case.40 The current court-referred mediation program encourages the courts to schedule mediation as early in the case as appropriate. By definition, the collaborative process must be selected before any litigation is filed.41

A sign of the evolution of divorce to a transactional practice area is the increasing number of couples who make their divorce decisions before filing the petition for divorce.42 This avoids an escalation in animosity due to the litigation-oriented court system. Once the agreement is reached, all the required papers are filed at once, with a request for an uncontested divorce.

All the decision-making methods, except litigation, require an agreement to use, or at a minimum, to try, a specific method.43 If one party refuses or is unable to meet with the other person to discuss the issues, neither mediation nor collaborative practice are possible. So one party can restrict the options or push the family to litigation.

The experience of friends and family in their own divorces is often the model for how to get a divorce, or how not to. Friends, family, clergy, therapists, financial advisors, and especially lawyers, can influence the choice. As professional advice is influential, the Report of Task Force on Family Law stated that, "All professionals who assist those facing divorce or separation should be aware of mediation and its benefits, and should inform the parties of those benefits. These professionals include therapists, lawyers, judicial officers, and other court personnel."44

There are no television series featuring mediators, collaborative lawyers, or negotiating lawyers. On television and in the movies the decision-making choice is litigation. It is not surprising that most people facing family breakups, and many of the professionals who advise them, see litigation as the way to decide divorce and parenting issues.

New ways must be found to educate the public. Examples may include information kiosks at the court, radio and television advertisements, earlier attendance at the child impact seminars, case managers to explain the alternatives, or mediators stationed at the courthouse. An informed public will be able to make more informed choices of how to proceed with their individual case.45

Direct Negotiation

Most divorcing and separating couples can work out at least a few of their issues by direct negotiation. For some couples, the few may be the big issues, like how to allocate parental rights and responsibilities or whether to sell the house. For some couples, only minor issues such as dividing the tangible personal property can be resolved without the help of professionals.

Direct negotiation may have a negative impact on the children. Parents often have the discussions in the home, where the children may overhear either the substance of a discussion or a hostile tone coming from the kitchen. Even if the children are protected from knowledge of the actual negotiation, it may create or increase hostility between the parents.

Important guidelines for clients using direct negotiations are:

a. Be business-like46 to preserve the co-parenting relationship

b. Keep the children out of it.

"Business-like" includes making appointments to discuss issues, establishing an agenda and sticking to it, and focusing on the future, not the past. If a particular meeting or issue is difficult, it should be deferred to a later meeting or until help is sought from professionals. The parties will always be parents together; no issue is worth hurting that relationship. "Keeping the children out of it" is important because what harms children most is hostility between their parents.47 The best approach is for the parents to talk when the children are at school, or to go out for coffee and leave the children with a babysitter.

The results of direct negotiation should be written in an outline for incorporation by the mediator or lawyer in the formal agreement. Any issues not resolved by direct negotiation can then be settled by mediation, collaborative practice, or negotiation between lawyers.

Mediation

The last 15 years has seen a growing acceptance in New Hampshire of mediation as a better way to resolve divorce issues. Chief Justice Broderick said recently:

The New Hampshire Judicial Branch is committed to the use of mediation, especially in family cases. I am in search of a new design, which reflects modern needs and responds to today’s concerns. As part of this new design, my colleagues and I are interested in creating alternatives to trial by combat for those who want them. We need to infuse our court system with new ways in which parties can choose to resolve disputes more efficiently, at lower cost and without having to appear before a judge.

We will, for the first time, gather family cases under one roof and bind them in a common process and a common vision to ensure that family disputes are resolved more effectively and with less acrimony so that affected families can have a better chance for a successful outcome.48

New Hampshire’s divorce statute defines mediation as a process in which a neutral third party facilitates settlement discussions between parties. 49 Some misunderstanding has resulted from the use of the word "mediation" for quite different dispute resolution techniques with varying suitability for divorce cases. 50 As the Task Force on Family Law stated:

Not all mediation processes focus on empowering participants to learn to make decisions involving their family. Some mediation processes which focus solely on resolving the legal issues associated with divorce often fail to understand the importance of the underlying relational problems impacting family dynamics and how they impede the parties’ abilities to solve problems. Studies indicate this type of mediation process will settle fewer cases and those that do settle will most likely be back in court as frequently as cases that are litigated or where settlement was negotiated by the parties and their attorneys.

Instead mediation must focus on enhancing the participation, control and self-determination of the parties. This is accomplished by focusing on empowering the parties and encouraging recognition of the parties. Empowerment allows for the enhancement of participation, control, and self-determination while recognition permits the parties to see each other in a new and shared vision. This new vision reduces the distortion and misunderstanding that would otherwise be a barrier to resolution, and teaches the parties not to demonize each other.51

The reason for the different mediation model in divorce is based on both the different needs of divorcing couples and the different origins of the practice.52

Most divorcing couples will have a continuing relationship as parents, whether their children are school age or adults. Childless couples may seek mediation as a civilized way to divorce. Thus, making the decisions is but one of the goals. Other goals are to preserve or improve the co-parenting relationship, to achieve a "divorce with dignity," and to keep down costs.

Mediation appears to work with angry clients and sometimes for those with psychological and family problems.53 What is required are experienced and trained mediators. However, profound distrust and a lack of fair-mindedness on the part of one or both partners more often interfere with reaching agreements (as is true in litigated cases as well).54

Marital Mediation55 in New Hampshire

Mediation of divorce issues in the United States began about 25 years ago.56 The first practitioners were usually therapists rather than lawyers. Mediation of divorce and custody cases in New Hampshire began in the 1980s.57

Most of the early certified mediators were community volunteers whose educational and employment backgrounds varied considerably. Mediation services were provided through the same community programs that provided training. The community program mediators were not paid and the sliding fees paid by clients were used for operational costs.

In 1990, RSA 328-C was enacted, setting up the Marital Mediator Certification Board (MMC Board) to certify mediators and mediator training programs.58 The statute requires the Board to have a diverse membership: a judge, a marital master, a lawyer, a mental health professional, three mediators, and two members of the public.59

This statute does not set up a mandatory licensing program. Mediators are not required to be certified in New Hampshire, but only certified marital mediators are eligible for court referrals in divorce and allocation of parental rights cases.60 Most New Hampshire-certified mediators attended one of the in state certified training programs.61

The statute requires certified mediators to have 48 hours of training, describes the subjects62 to be covered in the training, and requires a 20-hour internship. The MMC Board established administrative rules for both mediation programs and mediators.63

Until 2003, the MMC Board administrative rules required 60 hours of training and 60 hours of internship to become a certified mediator. Effective July 2003, the MMC Board administrative rules were substantially updated.64 The required training and internship hours were reduced to match those specified in the statute — 48 for training and 20 for internship. The new rules include two new categories of applicants — family law and family therapy professionals65 who may qualify for certification with only 10 hours of internship after the standard training.66 Since these changes, the number of certified mediators have increased to 54, including 11 members of the New Hampshire Bar. 67

In 2005, most certified marital mediators are in private practice, although a few continue to volunteer in community programs. Some mediators offer free or low-cost introductory appointments for parties considering mediation. Others offer information on a Web site or by mail. Clients find mediators through court referrals, referrals by professionals or past clients, the list of New Hampshire certified mediators,68 and mediation referral websites.69

Mediation Styles and Techniques

The mediator facilitates the negotiation; she acts as a choreographer rather than an umpire.70 This includes making and controlling the agenda, seeing that each party participates in discussion and, if needed, stopping behavior that is not constructive. "Marital mediation" is face-to-face, that is, the two parties and the mediator are all in the same room through all or most of the mediation. Lawyers are rarely present.71

Most New Hampshire divorce mediators who have taken a 40-hour or longer mediation training course provide either facilitative or transformative mediation, or some combination.72 In a survey of certified marital mediators, the majority use facilitative, followed by a mix of facilitative and transformative.73 Facilitative mediation is an interest-based and party-centered process in which the mediator intervenes in respect to process, not outcome.74 Transformative mediation emphasizes the importance of empowerment and mutual recognition of each party’s humanity; whether a settlement occurs is secondary to healing relationships.75

Interest-based negotiation is generally used in divorce mediation. The Harvard Negotiation Project developed this method as an alternative to positional bargaining.76 It is defined by four basic points:

People: Separate the people from the problem.

Interests: Focus on interests, not positions.

Options: Generate a variety of possibilities before deciding what to do.

Criteria: Insist that the result be based on some objective standard.77

What follows is a description of a typical marital mediation.78 The first mediation session begins with introductions and a review and signing of the mediation and fee agreements.79 The key terms of the mediation agreement are typically confidentiality of the process, full disclosure of financial information, inadmissibility of statements made during mediation, and commitment that the mediator will not be subpoenaed to court. The fee agreement may be included in the mediation agreement or may be separate. Typically, it provides for a set hourly fee, the cost of the drafted agreement, and how all costs will be allocated between the parties.

Next, the mediator provides more information on mediation and its place in the divorce process. The latter includes both the emotional impact of divorce on adults and children and court procedures. Basic legal principles are explained along with the essential role of lawyers in giving legal advice.

"Caucus" is a mediation technique utilizing separate meetings involving the mediator and each party for some portion of the mediation session. In an informal survey, almost all certified marital mediators used caucus in most cases with several noting that they always used it at the first mediation session and then occasionally as needed.80 One use of caucus during the first session is to screen for domestic violence or other reasons for power imbalance, and to give each party a chance to tell his or her "story" to the mediator. Caucuses may last 10-30 minutes each.

Some couples have "urgent issues" requiring attention before the divorce issues are settled; these often include the practicalities of separation, including how to cohabit until the divorce, co-parenting issues, and temporary support. Usually such a short-term agreement is not written in a formal agreement.81

Another typical function at the first mediation session is to review basic information about the couple’s children, income, assets, and debts. The mediator makes a list of the issues to be mediated, based on the couple’s report of anything that is already resolved. Homework is assigned; this is information for one or both parties to bring to the next mediation session. This can include financial documentation (assets and debts), budgets, lists of household contents, parenting schedules, and a summary of any agreed-on terms. Homework may also include a recommendation that each party consult a lawyer or financial professional before the next mediation session.

Subsequent sessions begin with "updates" (any developments since the prior session) and a review of the assigned homework. Typically, some of the homework assignments are not completed and need to be rolled over to the next session.

After assembling the information needed on a given issue to be mediated, the mediator may ask each party to give his or her thoughts about it. If this does not get a constructive discussion going, the mediator may suggest "brainstorming."82 One goal of this technique is to "expand the pie" by increasing the possible solutions to the issues at hand.

If this is not productive, the mediator offers various options that other families have used. For example, if the issue is the house, the mediator could suggest possible options:

• One person could get the house.

• It could be sold now, or

• It could be sold in the future.

• If one person is getting the house now, the other person’s interest may either be bought out or balanced by another asset.

Hearing the options prompts discussion and moves the parties toward agreement.

A key to the success of mediation is the recognition that people want to be heard. Mediators use what is called "active listening."83 Another common technique of mediators is "reframing." This takes the communication of a party and "alters and redirects its meaning for a more constructive use."84

 

Mediation in divorce and custody cases must focus on enhancing the participation, control and self-determination of the parties. This is accomplished by empowering, and by encouraging recognition of, the parties. Empowerment allows for the enhancement of participation, control and self-determination, while recognition permits the parties to see each other in a new and shared vision. This new vision reduces the distortion and misunderstanding that would otherwise be a barrier to resolution and teaches the parties not to demonize each other.85

The mediator drafts an agreement that reflects what has been decided in mediation. This may be done when either a substantial portion, or all, of the issues have been resolved. Mediators, both lawyers and non-lawyers, draft divorce and custody agreements that are filed in court. While some have objected to this as the "unauthorized practice of law," both the statute86 and procedures established for court-referred mediation presume that the mediator will draft the agreement. The fill-in-the-blank forms available from many superior courts and those included in the bar Bar Association’s Pro Se Divorce Booklet are suitable templates for mediators.87

For many years, these mediator-drafted agreements were captioned "Memorandum of Understanding" (MOU). As a "memorandum of understanding" is a written statement detailing the preliminary understanding of parties who plan to enter into a contract or some other agreement, 88 this is not an accurate term. Some clerks’ offices have refused to accept agreements with this title for filing, even if the contents and signatures were acceptable. In those counties or judicial districts, mediators label their documents as "permanent stipulations," and the clerks accept them. Other mediators use the title "mediated agreement" or "mediated permanent agreement" as being the most accurate term.

What is the role of the lawyer in divorce mediation?

The role of a lawyer in mediation is to provide legal advice, to support the client through the process, to review and critique the draft agreement, and if requested, to process the divorce through the courts. 89 In other words, everything the divorce lawyer would usually do, except negotiating and writing up the agreement.

The lawyer’s contact with the client may be limited to one or two appointments, but the responsibilities are the same. Sometimes the client seeks legal advice only after the mediated agreement has been drafted. Other clients consult with their lawyers before and between mediation sessions as well as for review of the agreement.

Some mediation clients are hesitant to consult lawyers about their mediated agreement because they expect lawyers to figuratively "tear apart" the agreement and recommend litigation.90 However, most divorce lawyers recognize that any divorce agreement, whether worked out between the parties or by their lawyers, involves compromise. The compromises that the parties make may be different than those the lawyer would recommend. If important or essential topics have been omitted, the lawyer should recommend that they be added. If the agreement includes terms that are contrary to the client’s interest, or that may put her at risk, the lawyer must say so.

Legal services may be provided to a mediation client on an unbundled or limited-services basis.91 This means that the lawyer provides only certain agreed-on services, such as "legal advice, consultation on draft agreement, and preparation of QDROs."92

Why would a lawyer encourage
a client to use mediation?

1. Clients who mediate are more satisfied with their agreements.

As one expert has said,

Clients indicated that they felt heard, respected, given a chance to say what is important, not pressured to reach agreements, helped to work together as parents, and felt their agreements would be good for their children. Mediation clients in the private sector are significantly more satisfied on almost all measures of process and outcome than are those using adversarial divorce processes.93

Clients who are satisfied with the outcome of their divorces are likely to be satisfied with their lawyers and say so to others.

2. Mediated agreements have better compliance rates than litigated orders.

Clients whose former spouses comply with their agreements are likely to be satisfied with their lawyers and say so.

3. Mediation is a better preparation for future co-parenting than litigation or other decision-

making options.94

 

After the case is closed, parents must continue to work together. By contrast, the trial lawyer may view things in black-and-white dichotomy, on the basis of the lawyer’s view of what the law commands. This analytical rights-based conclusion, however, may lack the creativity needed to "solve" the problem and resolve the dispute. Lawyers who look only for the legal solution and may not routinely advise their clients to live with something less.95

Litigation prepares parents for more litigation after divorce.

4. For some clients, the personal autonomy and privacy of mediation is important.

5. More efficient use of lawyer’s time benefits both client (lower fees) and lawyer (fewer unpaid or disputed bills).

The overall costs to the clients, including both mediator and lawyer fees, may be about the same or may be less.96 The court-referred program offers lower-than-market mediation fees; that is, $60 per hour while hourly fees in private cases are typically $90-$190 per hour. For clients that qualify as "indigent," there are no fees.97

6. Settled cases are over.

Should or Must a Lawyer Attend Mediation?

Rule 170 requires that counsel attend the mediation. Most of these mediations are conducted as "shuttle diplomacy," with the mediator meeting separately with each lawyer-client team. The model may be suitable for personal injury cases and other disputes where the parties do not have a continuing relationship.

In New Hampshire the practice of "marital mediation" in divorce and custody cases is substantially different from Superior Court Rule 170 mediation. It deals with improving communication and improving the co-parenting relationship as much as settling the case. Essential to this is the parties speaking directly to each other and not through counsel.

Certified marital mediators rarely mediate divorce and custody cases with lawyers present,98 although some polled were willing, but had never been asked.99 Lawyers who wish to attend mediation should consult with the potential mediator first.100

The Collaborative Movement

Collaborative Practice, also called Collaborative Law, came to New Hampshire in 2000.101 Stu Webb, a Minneapolis divorce lawyer who had "burned-out" from litigation, originated this concept around 1990. Collaborative law combines the positive problem-solving focus of mediation with the built-in lawyer advocacy and counsel of traditional settlement-oriented representation."102

In collaborative practice, specially trained lawyers agree to represent clients in negotiating a divorce with both parties and their lawyers committing to settle the case without litigation. While the clients cannot be prohibited from later switching to litigation, the lawyers are disqualified from representation should that happen.

Why use collaborative practice with its "no litigation" promise?

Litigation invariably polarizes the parties and by its nature casts issues in oversimplified black and white. It is almost always bad for children. Dissatisfaction with results and financial ruin are common consequences of litigation, which dispenses certainty and crude equity, but not "justice."103

Reaching a settlement that will work for the family is the only purpose of collaborative representation. The process includes the following principles to meet that goal:104

• No litigation or threat to litigate.

• Full, voluntary, early discovery disclosures.

• Acceptance by the parties of the highest fiduciary duties toward one another, whether imposed by state law or not.

• Voluntary acceptance of settlement as the goal, and respectful, fully participatory process as the means.

• Transparency of process.

• Joint retention of neutral experts.

• Disqualification of all lawyers and experts from participation in any legal proceedings between the parties outside the collaborative law process.

• Negotiations and communications principally conducted at four-way settlement meetings.

• Both lawyers and both clients sign agreements to adhere to these principles.

In the collaborative practice, the risk of failure to settle is shared by counsel and parties. By contrast, in mediation, this risk of failure is shared by the mediator and parties, not the lawyers. As collaborate practice advocate Pauline Tesler notes, if there is no agreement, they "simply proceed to court with their clients."105

Both lawyers must be trained in the techniques of collaborative practice.106 Lawyers training for collaborative practice must replace adversarial behaviors with collaborative behaviors. This is referred to as "retooling" or the "paradigm shift."107 Another collaborative concept is "creative lateral thinking" to replace the traditional weighing of each issue against the likely outcome if it were litigated.108

A collaborative case starts with the lawyers meeting to discuss the case and organize it for settlement. This preliminary meeting includes coverage of issues that may be difficult for each client and how to handle them. Counsels agree on an agenda for first session.

Before or at the first four-way session, financial affidavits and documentation of income, account balances, and other assets are exchanged. The agenda for each session is worked out in advance. It is understood that there should be "no surprises" at the four-way meetings. Topics and issues for discussion will either be decided at the prior meeting or discussed by counsel between sessions.

The collaborative process in the four-way meetings is very much like mediation, except that instead of a neutral facilitator, the two lawyers jointly facilitate the sessions. They also provide legal advice as needed. Commonly, the legal advice is given between the four-way negotiation sessions, but sometimes there is a pause in the meeting to allow each lawyer-client team to meet privately.

Collaborative practice requires some new vocabulary, as numerous terms family law lawyers use regularly are "conflict-based."109 For example, "opposing party" and "opposing counsel." The recommended term for the other lawyer is "collaborative colleague," but "Dana’s lawyer" or simply "Pat," often comes easier. The other party becomes "your spouse." More subtle are the vocabulary changes from "problem," "arguments," and "position" to "issue" or "challenge," "ideas," and "suggestions."110

Neutral Evaluation

The goal of neutral evaluation is to help the parties resolve the disputed issues of their case. The evaluator is a negotiation coach, a shuttle diplomat, a creative brainstormer, and an agent of reality.111 As part of the process the neutral evaluator will listen to each party’s view of the case and attempt to facilitate a dialogue between them to settle the dispute. Should any issue remain unresolved, the evaluator shall explain to the parties the likely outcome should the case go to trial. If this does not result in settlement, the Protocol explains the next step: "The process is confidential and any evaluation may be accepted or rejected by the parties."112

This process was instituted for divorce cases in the New Hampshire Superior and Family Division Courts in 1997. Originally, approximately 175 experienced family law attorneys were selected and most of these volunteered to be trained.113 Neutral evaluation was offered as a free service at courthouses.

Currently, only some superior courts offer neutral evaluation. Staffing freezes and cutbacks in recent years have led to some clerks’ offices ending the scheduling of neutral evaluation.114 Many of the trained neutral evaluators now offer these services for a fee at their law offices.

Neutral evaluation is usually done later in the divorce process, such as around the time of the pretrial. By this time, allegations and responses are well developed, discovery is complete, and the position of each party is clear. The final hearing has been scheduled, or is about to be. The incentive for settlement that an imminent contested hearing provides is part of what makes neutral evaluation work.

Cases suitable for neutral evaluation are those where:

• Lawyers differ on the law or how it will apply to the facts.

• One or both clients have trouble accepting what his/her lawyer predicts as likely litigated outcome.

Neutral evaluators meet with both parties and both lawyers together. Each side gives a brief description of its perspective,115 usually through the lawyer. As the "need to be heard" is important to disputants, this is a key step in ending litigation. The evaluator then meets separately with each lawyer-client team. Usually, the neutral evaluator will attempt to settle in typical "shuttle diplomacy" style. If that is not successful, everyone assembles and the neutral says how she expects the judicial officer will rule on the contested issues.116 The neutral may also discuss the unpleasantness and cost of a trial.

This "second opinion" from an experienced lawyer can be quite persuasive, especially when combined with finally having been heard, bearing the costs of litigation to that point, and feeling the pressure of an upcoming trial. At this point, neutral evaluation results in many settlements.

Negotiation Through Lawyers117

Negotiation through lawyers is the most common dispute resolution technique in New Hampshire divorces and is usually conducted after formal discovery. Various formats are preferred by individual lawyers: exchange of proposals and counter-proposals by letter; phone negotiation; sending draft agreements and responding with proposed changes; and four-way meetings. The format used may depend on one lawyer taking the initiative to send a letter or draft agreement. Or it may be determined by default; four-way meetings require everyone to agree on that format. Absent such an agreement, proposals in writing are used.

Letter proposals can be produced and responded to relatively quickly, especially with E-mail. Their disadvantage is that details needed in the formal agreement are absent and thus not resolved at this stage. Phone calls allow for questions and clarifications of points throughout the call, but have the same downside as letters. Additionally, the person receiving the offer by phone has the task of getting it down on paper to convey to the client.

The success of traditional four-way meetings depends primarily on the skill of the lawyers and their preparation for the meeting. The best chance of success in four-way meetings occurs when the lawyers agree on the agenda and process to be followed and take care to prepare their clients. An important part of preparation is helping the client develop realistic goals.118 Failure is usually due to emotions taking over, a lack of preparation, or both.

Exchange of draft agreements means that all specifics and details are set out for review by the other side. This plus can also be the downside as a party may focus on objectionable details and lose sight of the overall picture.

In negotiating with a pro se party, written negotiation through use of a draft agreement is the safest. Phone or in-person conversations may be misheard or misremembered. The draft agreement must be accompanied by a letter setting out the lawyer’s role as representative of the other party and advising the pro se to get legal advice.119 Frequently, the party prefers to respond to the proposal through the spouse rather than to the lawyer. The lawyer then sends the response directly to the pro se.

Parenting Coordination

"Parenting coordinator" is the newest form of family dispute resolution.120 A parenting coordinator is a combination educator-mediator-arbitrator.121 However, the parenting coordinator deals with limited issues, not major parenting questions such as where the child lives. This has been described as follows:

 

In many jurisdictions, courts have delegated decision-making power to a court-appointed individual who functions under the protection of a court order to ultimately decide issues the parents cannot. The court maintains oversight and can review any decisions made by these high-conflict managers, but the breaking of a parental impasse first falls to these individuals.122

The primary purpose of parenting coordination is to protect children.123 Most often the process is used after the divorce or other final order. It focuses primarily on implementing parenting agreements, either stipulated or ordered. Parenting coordination is for the small percentage of parents whose intense level of conflict puts their children at risk of psychological harm. Such parents regularly turn to the court for decisions on "essentially inconsequential issues."124 This both burdens the court system and harms the children by prolonging and institutionalizing hostility.

In New Hampshire a few judicial officers are appointing parenting coordinators using their general equity powers.125 Vermont’s legislature has authorized funds to subsidize court-appointed parenting coordinators on a sliding scale. For parenting coordination, Vermont uses mediators who have contracted with the court.126

Conclusion

The handling of divorce and custody cases in New Hampshire has changed substantially since 1970. Some of these changes are due to societal factors such as the consumer movement and changing gender roles. Other changes originated in the legislative and judicial branches of New Hampshire government.

With the expansion of the Family Division and adoption of RSA 461-A, the Parental Rights and Responsibility statute, New Hampshire is poised for other substantial changes in 2005 and the following five years. All divorce and "parental rights" cases will be handled by a specialized court. The often-litigated issue of "custody" will be gone and parents encouraged to work out a "parenting plan" describing how they will co-parent.

While there will always be some couples who need the court to make decisions for them, it is likely that as such options are offered, many will take one of the court system’s "off ramps." The implementation of voluntary court-referred mediation has started the process; beginning in October, the court will be able to make such a referral an order.

Other couples are choosing alternatives before going to the courthouse and the trial of combat of litigation, including unbundled services, private mediation, and collaborative practice. The satisfied consumers of these services are helping spread the word about more "family-friendly" decision-making options.

While fewer couples are seeking litigation, many are seeking legal assistance methods that fit within their budgets, or decision-making approaches that they feel will help, rather hurt, their situation. Some of these people would precede pro se if the only available legal service delivery method were full-service traditional representation. They either can’t afford it or they believe that hiring a lawyer will result in ruinous litigation.

Many pro se litigants can afford unbundled services or a combination of mediation and unbundled legal services. Those who represent themselves for other than financial reasons are looking for legal advice and other legal services that are not litigation-oriented.

The percentage of litigated cases will decrease over the coming decade. Lawyers in this area of practice have three choices: focus on the diminishing number of fully litigated cases; offer unbundled services, obtain the necessary training to offer mediation and collaborative services; or find another practice area.

Endnotes

1. This change is part of a movement across the United States. Andrew Shepard, Children, Courts, and Custody. Nancy Ver Steegh, Unfinished Business of Modern Court Reform, 38 Fam. Law Q. 449-450 (Summer 2004).

2. Some cases continue to be litigated. Approximately 10 percent of New Hampshire divorces are granted after a contested hearing. These include cases where only one or more of the divorce issues are decided by the court, the balance being resolved by a "partial agreement." Many other cases are contested until close to the date of final hearing.

3. N.H. Rev. Stat. Ann. §458:7-a (2004).

4. Nearly 70 percent of family related cases in our state involve at least one of the parties appearing and proceeding with the aid of counsel (pro se). Task Force on Family Law, Final Report of the Task Force on Family Law 5 (2004).

5. Effective 1989. N.H. Rev. Stat. Ann. §458-C (2004).

6. Effective 1988. N.H. Rev Stat. Ann. §458:16-a & 19 (2004).

7. "The Family Division represents the single biggest change in the court system in my professional life." Chief Justice Broderick, State of the Judiciary, Address Before a Joint Session of the N.H. Legislature (Feb. 23, 2005) (transcript available at www.courts.state.nh.us/press/stateofjudiciary.htm); See also Judicial Branch Family Division Implementation Committee, Report and Recommendations (2004).

8. N.H. Judicial Branch, The Judicial Branch 2003-04 Report, www.courts.state.nh.us/supreme/rpt03.04.pdf at 5 (2005).

9. Task Force, supra note 4, at 2.

10. Broderick, supra note 7.

11. HB 640 replaces the term "custody" in our domestic relations statute with "parental rights and responsibilities." N.H.H.B. 640, 159th Ses. (2005) to be enacted as N.H. Rev Stat. Ann. §461-A (effective October 1, 2005).

12. In 1971, there were only two decision-making options: negotiation between lawyers and litigation. The newer options reflect a "revolution in process and attitude," away from litigation and toward self-determination. Ver Steegh, supra note 1, at 449.

13. This echoes the "multi-door courthouse" proposed by Harvard professor Frank Sanders. Ilan G. Gewurz, (Re)Designing Mediation to Address the Nuances of Power Imbalance, 19 Conflict Resolution Q. 140 (2000).

14. Task Force, supra note 4, at 3.

15. Jonathan R. Cohen, Adversaries, Partners? How about Counterparts? 20 Conflict Resolution Q. 433 (Summer 2003).

16. See Pauline H. Tesler, Collaborative Law 111 (2001) (explaining that Interest-Based Negotiation addresses legitimate needs, aims at win-win, expanding the pie, and is "handled by reference to external measures or other even handed techniques." Positional Bargaining is described in three styles: 1) as a "dance of successive arbitrary, extreme positions toward [an] arbitrary meeting place"; 2) "extreme ultimatums and threats"; 3) a "reasonable position presented as ‘fair’ and leaving no opportunity for discussing alternatives."); See also Roger Fisher and William Ury, Getting to Yes, xviii (Bruce Patton ed., 2d ed., Penguin 1991).

17. See infra note 96.

18. The Collaborative Law Alliance of New Hampshire requires a 6-hour basic training and 6 hours of continuing education every 2 years. See www.CollaborativeLawNH.org (displaying more information on this organization.)

19. Tesler, supra note 16, at 96-97.

20. Id. at 4.

21. Robin Sher, Early Neutral Evaluation: Guidelines for a Successful Process, in materials for N.H. Neutral Evaluator Training 1 (1997).

22. Procedure used in negotiating the settlement of a lawsuit. "The mediator travels back and forth between... each side’s decision-makers and counsel." Black’s Law Dictionary 470 (7th ed. 1999).

23. M.A. Baris, et al, Working with High Conflict Families of Divorce 9 (2001).

24. A parenting plan is "a written plan describing each parent’s rights and responsibilities." N.H. H.B 640, 159th Ses. (2005) to be enacted as N.H. Rev Stat. Ann. §461-A:4 (effective October 1, 2005).

25. Baris, supra note 23, at 10.

26. The enactment of RSA 461-A, eliminating "custody" and requiring parenting plans (effective October 1, 2005), means that the outline will be updated. The list was revised in 2004 and to have 22 rather than 24 paragraphs. Uniform Support Orders & Standard Domestic Order Paragraphs for Temporary and Final Orders, N.H. Superior Court Administrative Order Number 20, www.state.nh.us/courts/superior/orders/admin20.htm (1997).

27. RSA 461-A requires a "parenting plan" including the following: a) Decision-making responsibility and residential responsibility; (b) Information sharing and access, including telephone and electronic access; (c) Legal residence of a child for school attendance, (d) Parenting schedule, including (1) Holiday, birthday, and vacation planning, (2) Weekends, including holidays, and school in-service days preceding or following weekends; (e) Transportation and exchange of the child; (f) Relocation of parents; (g) Procedure for review and adjustment of the plan; (h) Methods for resolving disputes. N.H. H.B. 640,159th Ses. (2005) to be enacted as N.H. Rev Stat. Ann. §461-A:4 (effective October 1, 2005).

28. There is a presumption that an equal division of assets is equitable. Pensions are specifically listed as assets to be divided in divorce. N.H. Rev. Stat. Ann. §458:16-a (2004).

29. There is a presumption of joint legal custody. N.H. Rev Stat. Ann. §458:17(II) (2004). H.B. 640, to be enacted as N.H. Rev Stat. Ann. §461-A:5 (effective October 1, 2005), replaces this with a presumption of "joint decision-making."

30. "Unbundled" legal services, in which a lawyer carries out a designated task for the client, who will otherwise handle the case pro se. Limited representation can take many forms. Traditionally, attorneys have provided limited representation through legal advice hotlines or legal clinics for self-representation parties. In recent years, however, private lawyers have offered limited representation to clients as a way of expanding the availability of legal services to people of unlimited financial means. N.H. Supreme Court Task Force on Self-Representation, Challenge to Justice: A Report on Self-Represented Litigants in New Hampshire Courts, at 10 (2004). Unbundled services may also be provided in non-litigated matters.

31. "Limited legal services" is another term for unbundled legal services. A third synonymous term is "discrete task representation." Forest S. Mosten, Unbundling Legal Services 2, 4 (ABA, 2000).

32. Amended Financial Affidavit Form, N.H. Superior Court Administrative Order Number 21, www.state.nh.us/courts/superior/order/admin21.htm (1997).

33. N.H. Rev. Stat. Ann. §458-C:3 (2004).

34. N.H. Rev. Stat. Ann. §458-D (2004).

35. The author provides both legal and mediation clients with information on the CIS program and contact numbers for local providers.

36. Helpful books for adults include: Crazy Times, Surviving Divorce and Building a New Life, Abigail Trafford; The Dollars and Sense of Divorce, Judith Briles, Edwin C. Shilling, Carol Ann Wilson; Mom’s House, Dad’s House, Isolina Ricci. For children: Dinosaurs Divorce, Marc Tolon Brown, Laurence Krasny Brown. Honey Hastings, The New Hampshire Divorce Handbook 252-254 (1999) (additional recommendations listed).

37. In collaborative practice, the parties may be referred to a neutral "child expert" for education about the child’s needs and decisions for the child. The "team approach" model of collaborative practice always includes such an expert, as well as coaches for each parent and a financial expert.

38. Mediators refer to this as being "stuck."

39. This is why the Task Force on Family Law has recommended that mediation should occur as early as possible. Task Force supra note 4 at 25.

40. Task Force supra note 4, at 34

41. The author has had a case in which the petition was filed, then the parties decided to use the collaborative process. The petition was withdrawn, collaborative practice followed, the case was settled and a new petition was filed with the agreement.

42. The author sees this in cases using negotiation, mediation, collaborative practice, and lawyer-negotiation. It is suitable whenever no immediate or temporary court order is needed.

43. Under RSA 461-A, the court will have the power to order a couple to go to mediation. As a practical matter while they may be ordered to attend mediation, they cannot be forced to mediate. The expectation is that meeting the mediator and hearing about mediation may convince reluctant parties to try mediation. N.H. H.B 640, 159th Ses. (2005) to be enacted as N.H. Rev Stat. Ann. §461-A (effective October 1, 2005).

44. Task Force, supra note 4, at 87.

45. Task Force, supra note 4, at 32.

46. The author learned the concept of "business-like" as the model for after-divorce parenting from parent-educator Judith Orme, MSW, formerly her mediation partner.

47. "Research indicates in divorce, or intact but high conflict families, the greatest damage to children occurs when the children are subjected to conflict...." Baris, supra note 23, at 13.

48. Broderick, supra note 10.

49. N.H. Rev. Stat. Ann. §458:15-a; N.H. Rev Stat. Ann. §461-A(1)(II) (effective October 1, 2005).

50. Including "shuttle diplomacy" as commonly used in the Rule 170 process.

See supra text accompanying note 22.

51. Task Force, supra note 4, at 34-35.

52. Joan B. Kelly, Family Mediation Research: Is There Empirical Support for the Field?, 22 Conflict Resolution Q. 3 (Fall-Winter 2004).

53. Pauline Tesler discusses the waves of strong, even unmanageable emotion washing over them - grief, rage, fear, and vengefulness prominent among them. Tesler, supra note 16, at 30.

54. Kelly, supra note 50, at 28.

55. The term "marital mediation" is used in RSA 328-C, the certification statute. "Divorce and custody mediation" or simply "family mediation" might be more appropriate as these mediators handle unwed, after-divorce and grandparental cases as well. See N.H. Rev Stat. Ann. §458:15-a (2004); N.H. Rev Stat. Ann. §461-A:7 (effective October 1, 2005).

56. Kelly, supra note 50, at 3.

57. In 1979, Felicity T. Lavelle, a law student from Franklin Pierce, applied for and received a grant from the N.H. Attorney General’s Office for the Concord District Court Mediation Program. In 1981, with guidance and support of Bruce Freidman, Charles Douglas, Russell Hilliard, and Helen Head, the District Court program incorporated as the private non-profit agency N.H. Mediation Program, Inc. Source: E-mail from Rose Hill Bagley, May 23, 2005. For many years, this was the only program offering divorce mediation and training for divorce mediators.

58. The statute also provided for the certification of mediation programs. None have ever applied for certification and 2005 legislation deletes this statutory authority. N.H. S.B. 132, 159th Ses. (2005) (hereinafter SB 132). This bill has passed both houses and will be effective 60 days after the governor signs it.

59. 1989, 268:3, eff. July 24, 1989 provided that the initial appointments be made within 60 days. Under SB 132, the Superior Court judge will be replaced with a Family Division judge. For the current membership see the N.H. Marital Mediator Certification Board web site www.nh.gov/marital/mediators.htm.

60. N.H. Rev. Stat. Ann. §458:15-a (2004); N.H. Rev Stat. Ann. §461-A7 (effective October 1, 2005).

61. MMC Board Administrative Rule Mar 303.02 allows those who have taken a 40 hour program approved by the Association for Conflict Resolution to qualify, provided they also take 8 hours in specified New Hampshire topics. Mediation Training Requirements, Mar 303.06, http://gencourt.state.nh.us/rules/mar100-400.html (N.H. Marital Mediator Certification Board).

62. "The board shall require applicants for certification to meet the following conditions: (a) Satisfactory completion of a program of instruction approved by the board and at least 48 hours in length, including at least 8 hours in domestic violence, and components in family dynamics and relevant law; (b) Completion of an internship approved by the board and at least 20 hours in length with a certified marital mediator or certified marital mediation program; (c) Submission of a completed application to the board; (d) Submission of at least 3 recommendations from persons who have participated with the applicant in marital mediation work." N.H. Rev. Stat. Ann. §328(C)(5)(I) (2004); See also N.H. S.B. 132, 159th Ses. (2005) (making minor changes in these requirements). Passed by both houses, it will be effective 60 days after it is signed by the Governor, giving it an estimated effective date of October 1, 2005.

63. For the current rules see http://gencourt.state.nh.us/rules/mar100-400.html.

64. Id.

65. Family Law and Mental Health Practitioners, Mar 303.07, http://gencourt.state.nh.us/rules/mar100-400.html (N.H. Marital Mediator Certification Board).

66. Internship Requirements, Mar 303.06, http://gencourt.state.nh.us/rules/mar100-400.html (N.H. Marital Mediator Certification Board).

67. Two or three others have law degrees, but are not members of the N.H. Bar. See www.nh.gov/marital/mediators.htm (directory of mediators).

68. Id.

69. See https://bridge.acrnet.org/index.php?t=referrals.php.

70. Cohen, supra note 15 at 435.

71. Kelly, supra note 50 at 4.

72. In March 2005, this author e-mailed all certified marital mediators asking for a few basic questions about their backgrounds and style of practice; 17 responded. Of these, 7 had a mental health background, 4 were lawyers, 1 had a degree in conflict resolution, and 5 had "other."

73. Answers in the survey cited in the prior note: facilitative - 9, facilitative/transformative mix- 6, transformative - 2, facilitative/evaluative mix - 1.

74. Tom Fisher, Advice By Any Other Name, 19 Conflict Resolution Q. 212 (Winter 2001)

75. Mark S. Umbriet, Humanistic Mediation: A Transformative Journey of Peacemaking, 14 Mediation Q. 203 (Spring 1997) (Citing Bush and Folger, The Promise of Mediation, 1994).

76. See supra the text accompanying note 16; see also Fisher, supra note 16, at 4.

77. See supra the text accompanying note 16; see also Fisher, supra note 16, at 10-11.

78. As the author’s practice (Professional Mediation) has evolved over 10 years. It is based on her training at Alternative, a certified training program.

79. These documents are comparable to retainer letters and fee agreements in legal practice.

80. From the survey described above at note 70. Seven said they always used caucus for first session, others said frequently–(4), often used caucus –(3), rarely used caucus –(2). Note that these caucuses take only part of any session; the mediation itself takes place with everyone in the room.

81. The author writes the outline of the agreement on a flip chart and has the parties initial the outline with a marker.

82. "A group problem-solving technique that involves the spontaneous contribution of ideas from all members of the group" Merriam-Webster Online Dictionary (http://m-w.com/cgi-bin/dictionary?book=Dictionary&va=brainstorming).

83. Active listening is a structured form of listening and responding that focuses the attention on the speaker. The listener must take care to attend to the speaker fully, and then repeat, in the listener’s own words, what he or she thinks the speaker has said. International Online Training on Intractable Conflict, University of Colorado, www.colorado.edu/conflict/peace/treatment/active.htm.

84. Fisher, supra note 72, at 206 (citing R.D. Benjamin, The Mediator as Trickster, 13 Mediation Q. 131-150 (1995)).

85. Task Force, supra note 4, at 34 - 35.

86. N.H. Rev. Stat. Ann. 458:15-a (2004); N.H. Rev Stat. Ann. §461-A:7 (effective October 1, 2005).

87. In the author’s experience, couples in mediation generally wish there were much more detailed parenting provisions.

88. Black’s Law Dictionary 917 (7th ed.1999).

89. Most mediation clients in the author’s private practice mediate the settlement and then jointly file for divorce.

90. The author regularly has to convince her mediation clients that it is safe to get legal advice about divorce.

91. See supra text accompanying notes 30 and 31.

92. Based on the author’s "Unbundled Services Client Agreement." The Supreme Court’s Advisory Committee on Rules has recommended that a contract for Limited Legal Services be added to the Professional Conduct Rules. www.courts.state.nh.us/committees/adviscommrules/az.htm (appendix L).

93. Kelly, supra note 50, at 29.

94. Collaborative process has the same benefits, as it also requires the parties to work together in a constructive manner, to resolve the divorce issues.

95. Sandra Kaufman & Bobby McAdoo, Conflict Resolution: If It Weren’t For the Client, I’d Have Done a Great Job, 20 Conflict Resolution Q. 447 (Summer 2003).

96. If compared with a litigated divorce, a mediated divorce certainly costs less. If compared with a lawyer-negotiated divorce, the costs are likely to be similar.

97. Note: In these cases, the mediator is paid a flat fee of $300, regardless of the number of mediation sessions. The parties must repay this amount through the state "Office of Cost Containment," as is done in guardian ad litem cases.

98. See supra survey described at note 70. Answers: Never –(6), rarely –(8), often – (1).

99. See supra notes 72 and 98. Two responders had never had lawyers request attending, and a third (this writer) has had only two such requests.

100. Mediators have an ethical obligation not to take on a case that they are not competent to mediate. As the author has only limited success with lawyers present, she generally does not do such cases.

101. On December 14, 2000, the first New Hampshire Collaborative Law training was held in Concord. It was conducted by the "Collaborative Law Group of New Hampshire," later renamed the Collaborative Law Alliance of New Hampshire (CLANH). For more information on Collaborative Law, See www.CollaborativeLawNH.org.

102. Tesler, supra note 16, at 96-97.

103. Tesler, supra note 16, at 96-97.

104. Tesler, supra note 16, at 8.

105. Tesler, supra note 16, 9 n.2 (citing Joan Kelly, A Decade of Divorce Mediation Research, 34 Fam. & Conciliation Ct. Rev. 373-75).

106. "[C]ollaborative law demands special skills from the lawyers–skills in guiding negotiations, and in managing conflict. Lawyers need to study and practice to learn these new skills, which are quite different from the skills offered by conventional lawyers. Without them, a lawyer would have a hard time working effectively in a collaborative law negotiation." Tesler, supra note 16, at 230-231; The Collaborative Law Alliance of New Hampshire (CLANH) requires that its members only do collaborative cases with lawyers who have been trained in collaborative law. See supra the text accompanying note 101.

107. Tesler, supra note 16, at 27.

108. Tesler, supra note 16, at 98.

109. Tesler, supra note 16, at 5.

110. Tesler, supra note 16, at 57.

111. Sher, supra note 21, at 1.

112. Protocol Neutral Evaluation in Domestic Relation Cases in the Superior Court, N.H. Superior Court Administrative Order Number 23, www.state.nh.us/courts/superior/orders/admin23.htm (1997).

113. The training was for one day.

114. Phone call with Peter Wolfe, April 1, 2005.

115. Words such as "perspectives" or "views" are preferable to "statements" or "positions." Sher, supra note 109, at 1.

116. Providing it jointly means everyone gets the same information at the same time. In some situations, for example, for "reality testing," an assessment may be better given in caucus. Sher, supra note 109, at 5.

117. A good guide to this process is The Joy of Settlement: The Family Lawyer’s Guide to Effective Negotiations and Settlement Strategies (Gregg Hermann ed., ABA 1997).

118. Id. at 4.

119. New Hampshire Rules of Professional Conduct, Rule 4.3, ABA Model Code Comments states: An unrepresented person, particularly one not experienced in dealing with legal matters, might assume that a lawyer is disinterested in loyalties or is a disinterested authority on the law even when the lawyer represents a client. During the course of a lawyer’s representation of a client, the lawyer should not give advice to an unrepresented person other than the advice to obtain counsel.

120. Baris, supra note 23, at 9.

121. Baris, supra note 23, at 10.

122. Baris, supra note 23, at 10.

123. Baris, supra note 23, at 13.

124. Baris, supra note 23, at 9.

125. Conversation, April 8, 2005, with Attorney John Cameron, who has been so appointed in three such cases. Another example is a Sullivan County Superior Court case in which a parenting coordinator was appointed under the title "arbitrator/mediator." E-mail from Attorney L. Jonathan Ross, May 25, 2005.

126. The court funding is limited to 20 hours. Baris, supra note 23 at 213, 224.

127. In the early 1980s when the author started her practice, it was common for lawyers to say, "If we don’t agree on every issue, there is no agreement." In recent years, partial agreements have become commonplace.


Author

Attorney Honey Hastings is a collaborative lawyer and certified marital mediator with offices in Amherst and Temple. She is the author of the New Hampshire Divorce Handbook and a regular speaker at continuing education programs.

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